CV106003848

Decided: December 05, 2011

When a criminal investigation was performed in relation to the death of Carol Sinisgalli, the Rocky Hill Police Department obtained sworn statements from witnesses, and prepared a police report in connection with the investigation. The defendant, James O'Rourke,2 is seeking a protective order preventing the deposition testimony of Detective Roy Bombaci, and an order that the plaintiff be prevented from inquiring or deposing Patricia Adams, Robert Johnson, Jeffrey Brown, and any other witness that provided statements to the Rocky Hill Police Department in connection with the criminal investigation. The defendant also seeks to preclude any investigation or inquiry about any statements the named individuals made to the police, or using any statements as exhibits, cross-examining a deponent about any statements, and otherwise utilizing or disseminating any such statements.

By way of background, on April 7, 2010, the plaintiff served a subpoena duces tecum on the Rocky Hill Police Department (the “Department”), and notice of records deposition for the Department to be conducted on May 4, 2010, commanding that particular documents be produced, including copies of all sworn statements taken in the investigation of the death of Carol Sinisgalli. On April 16, 2010, O'Rourke filed a motion to quash the subpoena. Before the motion could be heard, on April 22, 2010, O'Rourke received a letter from the plaintiff's counsel with copies of the sworn witness statements which had been voluntarily produced by the Department.

On May 20, 2010, in order to maintain the status quo pending a full hearing on the rights of the parties with respect to the defendant's motion for a protective order and the plaintiff's various discovery requests, this court issued an order precluding the “us[e], further disseminat[ion], or otherwise utiliz[ation of] any witness or party statements” that the plaintiff had obtained from the Department “until further order of the court.” 3

On August 31, 2011, the plaintiff served a subpoena duces tecum upon Detective Roy Bombaci to appear at a deposition as well as to bring his police report with him. O'Rourke moved for a protective order and to quash the subpoena, relying on the court's May 20, 2010 order. Subpoenas were also served on Patricia Adams, Jeffrey Brown, and Robert Johnson, to which O'Rourke objected. The plaintiff filed an objection to the motions to quash and motions for protective order, and the court heard oral argument on the matter.

“[T]he [trial] court's inherent authority to issue protective orders is embodied in Practice Book § 13–5 ․” Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168, 221 n. 59, 884 A.2d 981 (2005). “[D]iscovery related protective orders ․ are injunctive in nature. Such orders have both the force and effect of an injunction, and serve a similar equitable purpose, namely, to regulate prospectively the conduct of the parties, either by restraining them from acting or by requiring them to act under circumstances that, if not so regulated, could lead to unduly harmful consequences ․ [O]nce issued, protective orders, like injunctions, need not remain in place permanently ․ and their terms are not immutable. It is well-settled that a trial court retains the power to modify or lift a protective order that it has entered ․ Indeed, courts and commentators seem unanimous in finding ․ [that courts have] an inherent power to modify discovery-related protective orders ․ when circumstances justify.” (Citation omitted; internal quotation marks omitted.) Id., 214–15.

The defendant argues that the court's prior order prevents any utilization of the sworn witness statements in either taking the deposition of Detective Bombaci, or the depositions of the witnesses. Although the court did order that “the plaintiffs [were] precluded from using, further disseminating, or otherwise utilizing any witness or party statements,” the court's intent was clear that this order was “until further order of the court.”

The defendant bases his argument for the preclusion of the witness statements on three points: (1) release of the statements violates the Freedom of Information Act (FOIA), specifically § 1–210(b)(3); (2) the criminal erasure statute, General Statutes § 54–142a would allow for the erasure of the police report including any statements obtained in the criminal investigation; and (3) any use of the statements would violate the defendant's right to privacy.

“[T]he general rule under the Freedom of Information Act is disclosure with the exceptions to this rule being narrowly construed.” Perkins v. Freedom of Information Commission, 228 Conn. 158, 167, 635 A.2d 783 (1993). The exemption upon which the defendant relies is contained in General Statutes § 1–201(b)(3) which provides in relevant part:

“Nothing in the Freedom of Information Act shall be construed to require the disclosure of ․ (3)[r]ecords of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of ․ (B) signed statements of witnesses ․

In examining the legislative history of the 1994 Amendment to FOIA which included signed witness statements among the § 1–210(b)(3) exemptions, there was concern that free dissemination of police reports might undermine the investigations performed by the police by exposing witnesses to potential dangers. See 37 S. Proc., Pt. 6, 1994 Sess., p.1962, remarks of Senator William A. DiBella. One senator commented that the only legitimate opposition to the amendment was the protection of witnesses. Id., p.1967, remarks of Senator George C. Jepsen. Senator Jepsen observed that the proposed new amendment provided that the “police have the discretion to withhold the identity of potential witnesses who could be placed at jeopardy[.]” Id. In answering a concern that the amendment would place a strain on the police to make decisions as to a request without time to make a proper investigation to establish the relationship of the persons involved in the matter, Senator Jepsen responded that the witness issue arises only in a small number of cases, and that the police are in a position to make a judgment as to the “witness issue.” Id., 1979–80. This exchange clearly indicates that § 1–201(b)(3)(B) was intended to allow police the discretion to refuse disclosure of signed witness statements for the protection of the witnesses.

In the present matter, a request was made by subpoena to the Rocky Hill Police Department to release the police report and the sworn signed witness statements in connection with the criminal investigation. The Department obviously determined that the documents were within the purview of FOIA § 1–201(a), and no exemptions prevented the disclosure. Although the plaintiff questions whether the defendant followed the correct procedure for contesting the disclosure,4 there is nothing which would prevent the disclosure of the witness statements in order to protect the safety of any persons. At the time that the Department received notice of the subpoena, the criminal investigation had been completed, there were no concerns that the disclosure of the sworn statements would undermine the investigation, nor has any claim been made, and that any witnesses could be in jeopardy or subject to intimidation. Given these considerations and the permissive nature of the FOIA exemption, the Department was within its right to disclose the sworn statements.

The defendant also argues that the criminal erasure statute, General Statutes § 54–142a, which provides that once a criminal prosecution has been dismissed “all police and court records and records of any state's attorney pertaining to such charge shall be immediately and automatically erased” prevents the disclosure of the sworn witness statements.

In Boyles v. Preston, 68 Conn.App. 596, 610, 792 A.2d 878 (2002), the appellate court held that a personal videotape is not a record subject to erasure pursuant to § 54–142a. “Our courts have held that the term ‘records' in the Erasure Act does not include evidence obtained by the police in the course of an investigation, nor does it preclude the testimony of witnesses as to their personal recollection of events.” Id.

In Penfield v. Venuti, 93 F.R.D. 364 (D.Conn.1981), the court was asked to construe the Connecticut criminal record erasure law in order to determine the extent to which records and other evidence “erased” under the statute are discoverable in civil litigation because the charges against a defendant were dismissed. There the defendants filed a motion for protective order to prevent the inquiry of the criminal investigation, and to prevent the deposition of the police officers who investigated the accident. They argued that since the criminal prosecution had been dismissed, and thereby erased, § 54–142a also barred the requested discovery. Pointing out that the police perform “community caretaking functions,” such as the “investigation of motor vehicle incident and other emergencies or crises which to do not necessarily require investigation of a violation of a criminal statute or action by prosecutorial authorities,” the court held that records compiled or material collected routinely by police officers could be discovered in civil litigation arising from an accident even if there is an unsuccessful prosecution under a criminal statute. Id.

“Indeed, if the courts were to ․ preclude the use in civil litigation of any and all material collected or records compiled by police officers in cases that prompt an unsuccessful criminal prosecution[,] the conduct of civil cases arising out of many serious incidents could be hopelessly crippled. [General Statutes § 52–142a] on its face does not require that the records and testimony of police officers otherwise available in civil litigation be placed beyond the reach of litigants simply because a prosecutor decides that the conduct of a particular person was not serious enough to warrant prosecution and the charges against the person ultimately are dismissed.” Id.5

Lastly, the defendant argues that the disclosure of these documents invades his right to privacy and his right to be left alone regarding any statements that may have been given by him or others. The court cannot find that he has any legitimate and reasonable expectation of privacy as it relates to the disclosure and utilization of the witness statements. The test is whether the public disclosure of the statements would be “highly offensive to a reasonable person, and ․ not of legitimate concern to the public.” Perkins v. Freedom of Information Commission, supra, 228 Conn. 172.

This case involves a matter of legitimate public concern: the death of a person, and the potential liability of a then elected state official. These statements are to be used in connection with establishing facts central to the resolution of a civil case, not for the dissemination of salacious details regarding the defendant's personal life. To prevent the disclosure of investigative material compiled by the police department in a criminal case which is not prosecuted would undermine the civil judicial system.

For the reasons stated above, the court orders:

1. The May 20, 2010, orders are hereby vacated.

2. Motion to quash and motion for protective order of Detective Roy Bombaci, # 177—denied.

3. Motion for protective order, # 179—denied.

4. Objection to motion to quash and motion for protective order, # 177, and objection to motion for protective order, # 179—sustained.

5. The plaintiffs are permitted to use, disseminate, or otherwise utilize any sworn signed witness or party statements obtained from the Rocky Hill Police Department regarding an investigation that occurred on or about January 21, 2009. Further, depositions of the Detective Roy Bombaci, Patricia Adams, Robert Johnson, Jeffrey Brown, and any other witness that provided statements to the Rocky Hill Police Department shall take place in accordance with notification and scheduling procedures.